A constitution is an important and interesting document. Even one with tattered legitimacy and chaotic contents, such as the Constitution of the Republic of China (ROC) and its additional articles, can have a number of articles that are worth studying.
For instance, the right to determine “major policies for national security,” which is conferred upon the president by Article 9 of the Additional Articles of the Constitution, is a freakish concept. What is so freakish about it? The simple answer is that “major policies for national security” might be phantoms that do not actually exist.
The right to determine major policies for national security, which was written into the Additional Articles after the so-called “period of national mobilization for the suppression of the communist rebellion,” is theoretically one of the most important powers that the president has, so the three presidents who have been in office since the article was enacted should have used its power.
However, none of them has declared any such major policies for national security. Is it because they should not do so, or because it would be inappropriate for them to do so? Under the Act Governing the Legislature’s Exercise of Power (立法院職權行使法), the legislature can ask the president to explain major policies for national security in the state-of-the-nation report. Hence, such policies can be made public.
What does that mean in practical terms? Take the issue of the Asian Infrastructure Investment Bank (AIIB) for instance. President Ma Ying-jeou (馬英九) should have explained his basic stance on the bank and how he intends to promote it when explaining his major policies for national security, instead of rushing into a decision overnight.
A more thorough requirement for institutionalizing this power would be to make major policies for national security the foremost prerequisite in the proposed cross-strait agreement oversight law, meaning that only after the president proposed his plan for a cross-strait agreement in his major policies for national security would the Mainland Affairs Council be able to initiate procedures relating to that agreement.
Frankly, this vestige of authoritarian rule should be abolished completely and replaced with a clearer and more precise “presidential remit.” Unfortunately such a change cannot be made in the short term, so this particular presidential power can only be made open to scrutiny through future changes in the law.
That brings us back to the focal issues of current constitutional reform. If last year’s Sunflower movement gives us any major enlightenment or direction regarding constitutional reform, the legislature’s powers of restraint and oversight over the out-of-control powers of the president are definitely key items on the agenda.
Before, throughout and since the Sunflower movement, its main demands have always been transparency of information, genuine legislative scrutiny and enacting an oversight law for cross-strait agreements before reviewing them. What Ma plotted, but failed to do, was to defeat Legislative Speaker Wang Jin-pyng (王金平).
Therefore, even if the legislature is not well thought of, it is still the normal counterbalancing mechanism in a democracy and the current points of contention between the two major political parties are centered on the legislature’s relationship with the president and the Cabinet.
If disputes over which kind of constitutional system is to be installed are temporarily put aside, a kind of “Ma Ying-jeou test” can be used to make a preliminary assessment of the various proposals for constitutional reform. The “Ma Ying-jeou test” means considering whether a particular kind of system could prevent Ma from acting in a headstrong manner.
Why Ma in particular? Because the “single-member district, two-vote system” for legislative elections was applied for the first time in 2008, and legislative and presidential election were both held in that year, thus providing a relatively clear experiential control group.
Quite clearly, merely giving the legislature the right to approve the appointment of the premier is not of much use, because, with the Chinese Nationalist Party (KMT) having a firm majority of legislative seats, any premier proposed by the president is sure to gain the legislature’s approval — even Premier Mao Chi-kuo (毛治國).
Even former premier Jiang Yi-huah’s (江宜樺) Cabinet survived a no-confidence motion. This means that even if the legislature has the right to approve the appointment of the premier, the government’s unbridled behavior and the resulting chaos will continue.
What about the stance of the Democratic Progressive Party (DPP)? Ma would certainly not use his right to dissolve the legislature. Why disband the legislature just to oust Wang when the KMT has a majority of legislative seats?
How about premiers’ right to initiate a vote of no confidence in themselves? It would not have made a difference either. If the Cabinet could survive a no-confidence vote initiated by others, it could certainly survive one initiated by itself. Why would the Cabinet initiate such a vote if it were not confident of surviving it?
Is there any solution, then? Interestingly, perhaps the mixed-member proportional representation system could be a basic remedy. If a proper mixed-member proportional representation system had been adopted, the KMT would not have won more than half of the legislative seats in 2012. If the system were then coupled with the legislative right to approve the appointment of the premier or dismiss the Cabinet, the counterbalancing power would be quite effective.
The most important thing is that the president would always have to negotiate with various forces in the legislature and therefore would not be able to act in an unbridled manner. All the president could do would be to travel overseas to show the public that he is the nation’s leader.
Of course, all this is only concerned with how to prevent unconstrained presidential behavior. If everyone believes that a brilliant president can be elected next time, we could continue with the current system. However, from an academic perspective, there is no such question of trust, because distrust of authority is the fundamental principle of democratic constitutions. If rational choice theory is applied, the system should be designed according to the principle of the “best worst-case scenario,” meaning that even in the worst-case scenario, it should not be so bad as to be irreversible.
So, even if a parliamentary Cabinet system is out of the question, the US presidential system also offers many counterbalancing mechanisms that are worth considering and emulating, such as midterm elections, congressional committee member appointments, the power to investigate the executive branch, the power of the purse, the right to pass appropriations bills and so on.
Although it might stem from party-political considerations, the KMT is still to be commended for daring to propose adopting a parliamentary system. As for the DPP, it does not have to get into a fluster and rush to counterattack now that the KMT, unpopular as it is, has actually proposed a move in the right direction.
Amendments to the Constitution are part of reform, national transformation and the second wave of democratization, as well as being a requirement for survival in the face of a rising authoritarian China. Hence the constitutional reform process is an opportunity for the political leadership, which is itself the target of the reform, to prove itself. This window of opportunity combines options over natural independence, the redistribution of power and wealth, and a chance to stem the privileges of the rich and powerful.
For the time being, it is difficult for KMT politicians to take on this role, but DPP leaders also risk missing this great opportunity because of passivity or limited vision. As a result, Taiwanese democracy might be trapped in disorientation for a long time or even turn toward a populist neo-enlightenment dictatorship.
The public might not know a lot about constitutional theories, but the “historical craftiness” formed through collective wisdom is always ready to penalize careless and lazy stakeholders.
Yen Chueh-an is a professor at National Taiwan University’s College of Law and a supervisor of Taiwan Democracy Watch.
Translated by Ethan Zhan
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